Mor­gen­taler is ac­quit­ted of abor­tion charge

Dr. Henry Mor­gen­taler yes­ter­day was ac­quit­ted of per­form­ing an il­le­gal abor­tion by a Queen’s Bench jury which de­lib­er­ated for 10 hours be­fore reach­ing its ver­dict.

Crown Pros­e­cu­tor Louis G. Ro­bichaud, QC, said an ap­peal against the ver­dict would be launched as soon as pos­si­ble. It would be based on the con­tention that the Crim­i­nal Code sec­tion on which the de­fence was based was not legally ad­mis­si­ble.

The 50-year-old bearded physi­cian ad­mit­ted in the wit­ness box that he per­formed the abor­tion on Aug. 25 on a 26-year-old un­mar­ried grad­u­ate stu­dent who was in the sixth or sev­enth week of preg­nancy.

In a move that is with­out le­gal prece­dent, de­fence coun­sel Claude Ar­mand Shep­pard in­voked a sec­tion of the Crim­i­nal Code which deals with sur­gi­cal op­er­a­tions to jus­tify the doc­tor’s ac­tions.

Ar­ti­cle 45 of the Code states: “Ev­ery­one is pro­tected from crim­i­nal re­spon­si­bil­ity for per­form­ing a sur­gi­cal op­er­a­tion upon any per­son for the ben­e­fit of that per­son if:

“he op­er­a­tion is per­formed with rea­son­able care and skill.

“it is rea­son­able to per- form the op­er­a­tion hav­ing re­gard to the state of the health of the per­son at the time the op­er­a­tion is per­formed and to all the cir­cum­stances of the case.”

Ro­bichaud ob­jected to the in­tro­duc­tion of Ar­ti­cle 45 into the trial, de­scrib­ing its ap­pli­ca­tion to the abor­tion ques­tion as a “ju­di­cial ab­sur­dity.”

How­ever Mr. Jus­tice James Hugessen ruled the de­fence ad­mis­si­ble and in the 2½-hour charge to the jury Mon­day told them they had to de­cide whether it was rea­son­able med­i­cally speak­ing for Dr. Mor­gen­taler to per­form the abor­tion to the de­gree of jus­ti­fy­ing break­ing of the law.

There was a brief out­burst of hand­clap­ping and gasps of de­light from the largely fem­i­nine au­di­ence when the ver­dict was an­nounced.

As soon as the judge left the bench, Mon­gen­taler’s friends and sup­port­ers surged down the aisles to con­grat­u­late the beam­ing doc­tor, many of the women em­brac­ing him warmly.

Dr. Mor­gen­taler still faces sev­eral other il­le­gal abor­tion tri­als, but these have been post­poned by Jus­tice Hugessen un­til March at the ear­li­est pend­ing ap­peals.